Original Application No. 168 of 2013. Case: Abhilash Singh Kushwah Vs Union of India and Ors.. Armed Forces Tribunal
| Case Number | Original Application No. 168 of 2013 |
| Counsel | For Appellant: R.D. Singh, Advocate and For Respondents: Mukund Tewari, Ld. Counsel assisted by Subodh Verma, Departmental Representative |
| Judges | D.P. Singh, J. (Member (J)) and Anil Chopra, Member (A) |
| Issue | Armed Forces Tribunal Act 2007 - Sections 13(3) iii (v), 14, 20, 20 (4), 20 (5), 20 (6), 21, 22, 4; Army Act, 1950 - Sections 153, 154, 164, 182, 191, 192, 193, 20 (4), 21, 22, 4, 42 (e), 63, 83, 84; Code of Civil Procedure, 1908 (CPC) - Section 2(9); Constitution Of India - Articles 14, 141, 19(1)(e), 20, 21, 22, 33 |
| Judgement Date | September 23, 2015 |
| Court | Armed Forces Tribunal |
Order:
D.P. Singh, J. (Member (J)), (Regional Bench, Lucknow)
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This is an application under section 14 of the Armed Forces Tribunal Act 2007 (in short Act) by applicant being aggrieved with the punishment awarded on the ground of Alcohol Dependency Syndrome.
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The applicant was enrolled in the Army (PARA Regt) on 17.04.1998 and latter on posted to 7 PARA. He was transferred to Rajput Regiment being non PARA institution on 30.01.2011 and thereby posted to 26 Rajput on 30.04.2011. He was discharged from service on 07.01.2003 in pursuance of powers conferred by Army Rule 13(3)(3)iii (v) read with Rule 17 being undesirable to retain in service. A copy of movement order dated 07.01.2013 and letter dated 30.11.2012 have been filed as Annexure No CR1, CR2 and CR-3 respectively.
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Counsel for the Applicant submits that the applicant has been removed from service because of 'red ink entries' and on unfounded grounds. It is also submitted that the Alcohol Dependency Syndrome has not been affirmed by Medical Board hence the order of discharge is arbitrarily and malafidely based on extraneous consideration and without any application of mind. The procedure prescribed by Army Order has not been followed as per law and harsh decision has been taken in haste without any regular enquiry and also without providing any opportunity to the applicant for his defence. The order is without application of mind to the vital point of issue as well as of natural justice. The applicant has not been granted the opportunity to improve himself for laxity if any. The order has not been passed by the Competent Authority. It is also submitted that discharge from service consequent to red ink entries is not legal requirement. The Commanding Officer should not be so harsh with the individuals especially when they are about to complete their pensionable service.
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On the other hand it is brought on record that the punishment awarded to the applicant is based on different ground in the form of charge (red ink entry) reproduced in Para 5 of the Counter Affidavit. The relevant portions are reproduced as under:--
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It is further stated that the applicant had developed Alcohol Dependency Syndrome and was referred to Military Hospital, Jaipur. On account of Alcohol Dependency he became dangerous to his own safety. In consonance thereon a Show Cause Notice dated 30.12.2012 was issued to the petitioner in response to which the applicant replied vide letter dated 31.12.2012. On perusal of the Show Cause Notice, it was found that the punishment was awarded from time to time is the part of Show Cause Notice and reply was sought within 30 days. In response to Show Cause Notice issued under Army Rule 17 read in conjunction with Army Rule 13(3) iii (v) the applicant seems to have half heartedly admitted his mistake vide letter dated 31.12.2012 and conveyed that he will not commit any wrong acts in future and be permitted to complete pensionable tenure. However admission seems to be, with regard to the red ink entries.
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After the receipt of response to the Show Cause Notice the applicant has been discharged from service. Apart from Alcohol Dependency Syndrome the punishment awarded to the applicant is based on misconduct recorded through red ink entries seems to be admitted fact on record. Applicant has not denied that was not punished as stated above. After considering the applicant's reply the Brigade Commander held that the applicant is a undesirable soldier and he should be discharged in terms of powers conferred vide Army Rule 13(3) iii (v) read with the Army Rule 17.
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The provisions contained in Army Rule 13(3) iii (v) shows that Brigade or Sub Area Commander before ordering discharge, if the circumstances of the case permit, shall provide an opportunity to Show Cause Against the contemplated discharge. In the present case a Show Cause Notice dated 30.11.2012 was served on the applicant containing the charge with regard to Alcoholism and absent without leave. In Para 2 of the Show Cause Notice received by the applicant, it is alleged that despite repeated measures elicited by the unit the applicant has been failed to improve himself. Hence he was required to respond the Show Cause Notice within a month as to why his services should not be terminated. Para 2 and 3 of the Show Cause Notice for connivance is reproduced as under:--
(a) It is apparent that despite repeated correcting measures initiated by unit, you have made no evident efforts to improve your conduct. Your repeated offences have a negative impact on other soldiers and also adversely affect the unit discipline state. Keeping the above in mind, I call upon you to show cause to the undersigned as to the reasons why your service should not be terminated as an undesirable soldier under the provision of Army Rule 17 read in conjunction with Army Rule 13(3) iii (v).
(b) Your reply should reach to the undersigned through proper channel within 30 days of receipt of this notice, failing which it will be presumed that you have nothing to state in your defence and the competent authority will be free to initiate action to terminate your service under existing rules and regulations.
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After serving the Show Cause Notice on receipt of reply (supra) by the impugned order the applicant's services were terminated vide order dated 07.01.2013. So far as the provision contained in section 13(3) iii (v) is concerned the requirement is only the serving a Show Cause Notice with regard to proposed punishment which seems to have been duly complied with. However notice is silent as to what corrective measures were initiated by the unit.
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Rule 13(3) iii (v) required only the serving of Show Cause Notice for proposed punishment. The provision does not contemplate of a regular enquiry. Statutory provision warrants only for a Show Cause Notice which seems to be in compliance of nature justice.
Constitutional Mandate
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Before considering the arguments advanced by the learned Counsel for the parties, firstly, it is necessary to have a look over constitutional as well as statutory provisions, since the arguments advanced by the learned counsel for the petitioner relates to application of principles of nature justice in the present case. Article 33 of the Constitution of India provides that Parliament may by law determine to restrict or abrogate the applicability of fundamental rights guaranteed under part III of the Constitution of India for the discharge of duties by the members of armed forces. For convenience, Article 33 of the Constitution of India is reproduced as under:--
33. Power of Parliament to modify the rights conferred by this Part in their application to Forces, etc. - Parliament may, by law, determine to what extent any of the rights conferred by this Part shall, in their application to--
(a) the members of the Armed Forces; or
(b) the members of the Forces charged with maintenance of public order; or
(c) Persons employed in any bureau or other organization established by the State for purpose of intelligence or counter intelligence; or
(d) Persons employed in, or in connection, with the telecommunication systems set up for the purposes of any Force, bureau or organization referred to in clauses (a) to (c), be restricted or abrogated so as to ensure the proper discharge of their duties and the maintenance of discipline among them.
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The Government of India has framed Army Rules, 1950 (herein short referred as rules) which provides the service conditions of the Army Personnel. On the basis of the submissions of the learned counsel for the parties, the provisions contained in Sections 20, 21 and 22 of the Army Act are relevant for the purposes of the present controversy which are reproduced as under:--
20. Dismissal, removal or reduction by the Chief of the Army Staff and by other officers: (The Chief of the Army Staff) may reduce to a lower grade or rank or the ranks, any warrant officer or any non-commissioned officer.
(3) An officer having power not less than a brigade or equivalent commander or any prescribed officer may dismiss or remove from the service any person serving under his command other than an officer or a junior commissioned officer.
(4) Any such officer as is mentioned in sub section (3) may reduce to a lower grade or rank or the ranks, any warrant officer or any non-commissioned officer under his command.
(5) A warrant officer reduced to the ranks under this section shall not, however, be required to serve in the ranks as a sepoy.
(6) The commanding officer of an acting noncommissioned officer may order him to revert to his permanent grade as a non- commissioned officer, or if he has not permanent grade above the ranks, to the ranks.
(7) The exercise of any power under this section shall be subject to the said provisions contained in this Act and the rules and regulations made thereunder.
21. Power to modify certain fundaments rights in their application to persons subject to this Act: Subject to the provisions of any law for the time being in force relating to the regular Army or to any branch thereof the Central Government may, by notification, make rules, restricting to such extent and in such manner as may be necessary the right of any person subject to this Act-
(a) to be a member of, or to be associated in any way with, any trade union or labour union, or any class of trade or labour unions or any society, institution or association or any class of societies, institutions or associations.
(b) To attend or address any meeting or to take part in any demonstration organized by anybody or persons for any political or other purposes.
(c) To communicate with the press or to publish or cause to be published any book, letter or other document.
22. Retirement, release or discharge: Any person subject to this Act may be retired, released or discharged from the service by such authority and in such manner as may be prescribed.
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